Food & Drug Law, Winter 2002

Professor Hutt

INTRODUCTION

In the last fifty years, the innovation in
procedure and the development of new drugs has enabled those
receiving organ transplants to live longer and healthier lives.
Ironically, these gains in the efficacy of organ transplantation
have also resulted in a significant number of people dying
potentially preventable deaths than they would have had these gains
never been realized. Those that die, die for want of organs, organs
that could potentially be more easily available. So instead of
passing away their remaining days resigned to the lack of solutions
and the inevitability of their imminent death, patients in need of
transplants, hang precariously on organ waitlists fighting time and
disease while they frustratingly try to discern whether the
life-saving organ and transplant procedure laying, seemingly right
in front of their eyes, is a mirage or not.

The ever-widening gap between the escalating demand
and the stagnant supply of organs has been screaming for national
reform for at least two decades. Furthermore, the weak and
narrow-minded responses by the federal government, most
importantly, the law prohibiting donors from receiving valuable
consideration, borders on scandalous when one considers that these
federal responses have been wholly ineffective for years.

In the United States, just over 79,000 people
currently need organ transplants.[1] Of that 79,000, roughly 75% or 58,500, will be dead
and buried before their turn comes to receive a
transplant.[2] This works out to fifteen people dying everyday
waiting for organs that never become available for
transplant.[3] In reaction to these harrowing statistics the
American Medical Association’s Council on Ethical and
Judicial Affairs convened in December of 2001 to study possible
solutions to alleviating the lack of transplantable organs. When it
came to pursuing a means of somehow compensating those that donated
their organs, the Council split down the middle on whether to even
study the issue.[4] Only a short time ago, the U.S. Secretary of Health
and Human Services, Tommy Thompson, convened an advisory committee
to study the idea of compensating the families of deceased donors.
Yet in response to an onslaught of criticism from media-savvy
conservatives for even having the federal government broach the
subject, further study of the practical implications of the idea
has been shelved.[5]

Despite the outwardly strong controversy of
compensating donors for their organs, it is apparent that, at the
very least, the federal government, the primary entity that can
effect change and ameliorate the lack of supply of transplantable
organs, has realized that the status quo is currently letting
fifteen people die unnecessary, tragic deaths everyday.
Unfortunately, especially for those patients on waiting lists, the
government does not seem even remotely close to instituting the
rational, functional answer that can easily address the supply
problem – repealing the federal law against donors receiving
compensation for their organs. Furthermore, there are signs, as
exhibited in editorials and select television reports that a
majority of the American populace is slowly shedding its total
aversion to donors receiving compensation for their organs. This
paper advocates a free market based approach to organ donation with
a small degree of government regulation to prevent abuse. In
realization of the vociferous yet misguided opposition to
implementing such a solution, this paper supports, as the next best
practical alternative, the federal government, at a minimum,
enabling deceased donors to receive compensation for their
organs.

TRANSPLANT HISTORY

Although the first transplants were conducted over
forty years ago,[6] it is only twenty years ago, on the heels of the
introduction of the drug Cyclosporin-A in 1980, that transplants
have become a viable means to cure diseased organs. The development
of Cyclosporin-A, an immuno-suppressant, enabled patients receiving
transplants to avoid the self-destructive responses of their immune
systems and thereby live longer than a few weeks to months that
they would have absent the drug.[7] In addition to the introduction of Cyclosporin-A,
medical professionals and hospitals improved their harvesting
techniques and maintenance of harvested organs.[8] In other words, procedures for removing and
preserving organs improved thereby increasing the viability of
these organs when transplanted. These medical innovations in drugs
and procedure led to increased survival rates for transplant
recipients, which in turn increased the demand for transplants and
organs. This leads us up to the present where, ironically, as the
drugs and techniques are consistently being refined, thereby
improving the effectiveness of transplant operations and increasing
the demand for organs, the available supply of organs remains
stagnant.

ALTERNATIVES

Considering the ever-widening gap between the
supply of organs and demand, it is no wonder that there have been
alternate efforts to investigate other possible sources of organs
besides human transplants. Xenotransplantation, organs transplanted
from animals, has been investigated and attempted with little
success. Transplant patients receiving organs from primates, pigs,
etc., almost always experience a hyper acute immune response that
leaves them dead within days of the transplant.[9] It is highly debatable whether any drug therapy will
ever be able to make xenotransplantion a feasible means to address
the lack of supply of transplantable organs.

Perhaps the most sensible means to increase the
supply of organs is to manufacture them. Bioengineers have been
vigorously pursuing techniques to produce viable human organs from
stem cells, for example, and while early research shows promise,
even the most optimistic bioengineers admit that the clinical
application of biologically manufacturing organs is at least twenty
years away.[10] Mechanical organs, i.e. those lacking living
cells, have also been developed, most notably the mechanical heart
and kidney. Yet each of these fail from a practical standpoint; the
mechanical heart is only intended to serve as a stand-in for a
biological heart[11] whereas the mechanical kidney is the size of desk
top computer.[12] Despite the potential, manufacturing organs is not
an achievable solution for solving the organ supply crisis in the
short-term.

THE SUPPLY PROBLEM

The dearth of organs in the United States is a
problem of lacking an adequately available supply not of potential
supply. For instance, twenty thousand usable cadavers, each with at
least one transplantable organ, are buried annually.[13] These twenty thousand cadavers alone represent a
highly valuable untapped potential supply of more organs for
transplant which could greatly alleviate the organ deficit in the
United States. This difference between available supply and
potential supply underlines the organ supply problem in the United
States. Unlike the supply of sunlight for instance, where the
available supply equals the potential supply, there is a gross
disparity between the number of organs the United States has
available for supply and what it could potentially have. In other
words, the supply of organs is there to adequately satisfy demand,
yet it is simply not captured and utilized. Clearly the most
glaring source of untapped supply is live donors who have been
discouraged from donating due to the lack of incentives and
nebulous ethical considerations. Furthermore, outside of live
donors, there remains a significant supply of transplantable organs
from deceased donors but again, incentives and procedures have not
been put in place to realize this supply. In both cases, with both
living and deceased donors, potential supply is not captured
because the government has retarded and diminished the abilities
and incentives of suppliers (i.e. those living and deceased
donors), to meet this demand. Therefore, in order to rectify the
supply problem of transplantable organs one must remedy the
framework the United States government has put in place to provide
transplantable organs. To understand why there are fifteen people
dying everyday due to lack of organs one must look at the current
federal legislative approach to the organ supply problem.

THE LEGISLATIVE APPROACH

The current organ donation framework in the United
States is based on a policy of “encouraged
volunteerism.”[14] This policy acknowledges lawful organ donation
when the donor has freely (i.e. without being coerced) decided to
donate his organ(s) for transplantation or other medical research
purposes.[15] There have been three legislative acts that have
driven organ procurement to its current framework of
“encouraged volunteerism” in the United States: The
1968 Uniform Anatomical Gift Act; The 1987 Uniform Anatomical Gift
Act; and The National Organ Transplant Act.

The 1968 Uniform Anatomical Gift Act

In 1968, the National Conference of Commissioners
on Uniform State Laws approved the Uniform Anatomical Gift Act
(“UAGA”), which enabled anyone who was eighteen years
of age or older and mentally competent the right to designate their
organs for donation for transplant after they die.[16] By 1973 every state had enacted in whole or in
part, some form of the UAGA.[17] The UAGA did not speak on the right of donors to
be compensated for donation but did specify that the recipients
must be “hospitals, doctors, medical and dental schools,
universities, organ and tissue banks, and any specified individual
in need of a transplant.”[18] Furthermore, the UAGA demanded that all donors
have some sort of written documentation demonstrating their intent
to donate their organs.[19] Despite the written documentation requirement,
general medical practice usually has the doctor asking the
surviving family members for consent for organ procurement
regardless of the presence of written documentation or
not.[20] Even today, where a deceased donor has signed an
organ donation card, the doctor will not proceed with harvesting
the deceased’s organs if the family has refused to authorize
the removal of the organs.[21]

Although the UAGA was praised because it
“encouraged socially desirable virtues such as altruism and
benevolence without running the risk of abusing individual
rights,”[22] it had little effect in increasing organ
procurement and supply.[23]

The 1987 Uniform Anatomical Gift Act

Reacting to the obvious failure of the 1968 UAGA to
increase the organ supply, legislators made three important
revisions to the UAGA in 1987. First, in an attempt to correct what
was, in their estimation, the major deficiency of the 1968 Act, the
1987 Act included a “routine inquiry” provision which
required all public and private hospitals to inquire into the donor
status of every patient at admission into the hospital.[24] Prior to this revision, doctors had been
unsurprisingly averse to asking next of kin to donate organs during
the heartrending and tragic period following the death of their
loved one. This revision was an attempt to overcome this reluctance
of medical personnel to ask the next of kin whether they would
consent to the donation of the deceased’s organs.[25]

The 1987 revisions to the UAGA also included a
controversial “presumed consent” provision. This
provision authorized coroners, medical examiners or local health
officials to remove the organs of cadavers left in their custody
for transplantation or therapeutic purposes if the officials
didn’t have any knowledge of the decedent’s or
qualifying next of kin’s objection.[26] This provision was attacked on constitutional
grounds but the “presumed consent” provision was upheld
primarily on the basis of the next of kin lacking a protected
liberty, due process or property interest in the disposition of the
deceased relative’s corpse.[27] “Presumed consent” was clearly an
attempt to increase the organ supply by shifting the donation
presumption from one of opting out on organ donation to opting
in.

Lastly, the 1987 UAGA revisions, expressly
prohibited the sale of organs for transplantation purposes. Thus,
any compensation received by the donor for his organ was now
illegal. As in the 1968 Act, the 1987 revisions to the UAGA aimed
at increasing organ donations again failed to increase the organ
supply significantly. Most notably, while the “presumed
consent” provision should have theoretically led to a
significant increase in available organs, in practice the provision
barely had an effect. Medical examiners, health officials and
coroners rarely harvested organs under the auspices of the
provision partly because of its seemingly shaky legal basis and the
overriding reluctance reflected in practice and attitudes of
medical personnel to do so without the prior consent of the
deceased or the next of kin.[28] Furthermore, there were serious practical
impediments such as maintaining organ viability that were
reinforced by the lack of financial incentives for the donor or
medical personnel. Hence, unlike in other countries such as Austria
or Belgium, the “presumed consent” provision has proved
to have little effect in raising the organ supply in the United
States.

The National Organ Transplant Act

In 1984 the federal government responded to the
burgeoning organ supply crisis with the National Organ Transplant
Act (“NOTA”). NOTA had two purposes: 1) make the sale
of organs a federal crime; and 2) reinforce the position outlined
in the 1968 UAGA that the structure for organ procurement in the
United States would be “encouraged
volunteerism.”[29] The legislation notably exempted replenishable
tissues (e.g. blood, ova) from its coverage. Furthermore, NOTA also
set up a national network to enhance organ procurement and
education on a nation-wide basis. Echoing the lack of efficacy of
the UAGA and its revisions, NOTA too failed to increase the supply
of organs.[30]

The Failure of the Legislative Approach

The failure of the 1968 UAGA, its revisions in 1987
and NOTA to increase the transplantable organ supply can be
partially attributed to practical impediments. For instance,
although the 1987 UAGA revisions attempted to remedy medical
personnel’s reluctance to ask the next of kin for consent
with the “routine inquiry” provision, there is still
widespread disinclination on the part of medical personnel to
ask.[31] Moreover, medical personnel’s deference to
the next of kin’s refusal to permit doctor’s from
taking the deceased’s organs even when the deceased has
signed a donor card demonstrates another practical failing.
Furthermore, it reveals that the underlying purpose of the UAGA to
enable individuals to control the disposition of their bodies is
not being realized.

These practical failings stem from an inherent flaw
in the framework of the organ procurement scheme in the United
States, namely that the underlying premise of “encouraged
volunteerism” is incapable of increasing the organ supply
significantly because it ignores the necessity of incentives. In
other words, the sum of United States legislation on organ donation
has retarded organ donation by prohibiting valuable consideration.
In fact, one may view the current status quo as enabling everyone
but the donor to receive valuable consideration (e.g. the hospitals
get paid for the harvesting and corresponding transplant, the donee
gets the organ, etc.). Clearly, “encouraged
volunteerism” doesn’t work because incentives are not
present among any of the participants for it to work. Although
visions of a virtuous and generous citizenry may dance in
legislators heads this does not comport with reality where most
people have little desire to part with their organs even when they
clearly no longer have a use for them. People are averse to
donating organs for a number of reasons. Some of the most widely
stated are: opposition to donate due to religious belief; denial of
mortality; fear that medical personnel will not fully devote
themselves to saving the donor’s life when there is an
available organ for transplant; and simple disgust at the idea of
having an organ removed.[32] Yet the prime reason people are reluctant to
donate their organs is that there is no incentive beyond altruism.
The right amount of compensation could overcome any of the
above-mentioned reasons individuals choose not to donate.

Even in those infrequent instances where
individuals are willing to part with their organs after death,
those that would be in a position to approve and harvest the organs
have no incentive to do so. It has been well documented that
doctors widely consider maintaining a brain-dead patient in order
to harvest their organs a heavy psychological burden.[33] Furthermore, the doctor has no incentive to
counter the likely potential of upsetting the next of kin with the
request. Similarly, the next of kin lacks an incentive to permit
the organ donation considering they would likely rather keep the
body “whole” for burial or crematory purposes.
Therefore, disincentives are laced throughout the framework and the
actors are consistently disinclined to increase the organ supply.
Clearly, the actors need to be given a reason, i.e. an incentive,
to contribute their organs or to aid in the contribution of
others’ organs in the face of their reluctance to do so. Even
the most reluctant will overcome their reluctance to do something
when an incentive (such as monetary compensation) is provided for
doing such thing.

If incentives are provided the practical
impediments to increasing the organ supply will fall away. For
example, if the next of kin could be compensated for the organs of
their deceased relative, the next of kin will be more likely to
consent to donation. Moreover, doctors will have a reason to ask as
it could clearly be in the best interests of the next of kin. Other
practical impediments such as willing donors failing to carry their
donation cards will be alleviated as donors will have a clear
inducement to be responsible and carry their cards if it would mean
compensation to their families if they did so. The critical factor
is putting in place concrete incentives (i.e. those that go beyond
hazy notions of altruism) that encourage people to provide their
organs.

“PRESUMED CONSENT”: AN ALTERNATIVE
SOLUTION?

The most notable alternative attempt at remedying
the lacking supply of organs has been the “presumed
consent” system.[34] Variations of this system have been tried in
European countries with differing results. In essence,
“presumed consent” is an opt-out system in which the
deceased has been presumed to give consent to the harvesting of
their organs despite any unequivocal confirmation of doing so.
Therefore, counter to the American opt-in system where the donor
must carry a signed donor card demonstrating their willingness to
donate their organs, in a “presumed consent” system,
the opposite is true, the deceased must carry some type of
paperwork or must register in a national database confirming that
they do not wish to be a donor. Absent evidence that the deceased
opted out, medical professionals have authority to take their
organs under the “presumed consent” of the deceased.
The efficacy of this system has varied depending on how
‘pure’ the presumed consent system is. For instance, in
France, where the organ procurement rate is one of the top six in
Europe,[35] the effectiveness of presumed consent in obtaining
transplantable organs is tempered by the duty of the medical
professionals to make a reasonable and diligent effort to determine
the deceased’s wishes, i.e. if their were any objections to
organ donation provided to a national registry or provided to the
next of kin.[36] This duty to make a reasonable effort to determine
the individual’s wishes adds time to the detriment of the
quality and viability of the organs. Furthermore, it provides the
next of kin with input into the decision, which has resulted in
90.7% of the cases operating like the American voluntary system of
organ procurement where the next of kin vetoes the presumed consent
and does not permit organ procurement.[37] Hence, although the ‘weak’ presumed
consent system in France has more effectively addressed the
country’s organ deficit than the United States, there is
still a gross difference between supply and demand.

Counter to the French system, Austria has a
relatively “pure” system of presumed consent. Austrian
medical professionals have no duty to look for records or inquire
with the next of kin to determine the potential donor’s
stance on donating their organs.[38] As one would expect, Austria has fared much better
than other nations in procuring organs for donation.[39] Nevertheless, despite its “pure”
system of presumed consent even Austria has been unable to meet the
organ demand of its citizens.[40]

The Major Drawback to “Presumed
Consent” in the United States

Regardless of the varying levels of effectiveness
amongst countries in their utilization of differing types of
presumed consent systems, it is clear that presumed consent as a
framework is better at procuring organs than the “encouraged
volunteerism” framework of the United States. One would
surely agree that rather than having fifteen people die a day under
an “encouraged volunteerism” arrangement it is surely
better to have only ten die under a “presumed consent”
system. So why not, at the very least, have the United States move
to a presumed consent system? It is highly unlikely that the United
States will move to a “presumed consent” system because
the notion of “presumed consent” is at inflexible odds
with American ideals of personal autonomy and individual liberty.
This is counter to European notions of individual rights which are
more prone to be curbed in favor of more communal and socialist
ends. In Europe, “presumed consent” basically amounts
to an individual’s body escheating to the government absent
some clear documented proof to the contrary.[41] Implicit in this, is the idea that the government
has some property right in the individual’s body. Yet as
demonstrated by constitutional history, the United States has been
consistently averse to any notions of the government having
property rights in the individual’s body.[42] Recently in Brotherton v. Cleveland , the
6th Circuit held that removal of corneas from a deceased
person’s eyes without any examination of the patient’s
medical records to seek donation approval was an unconstitutional
deprivation of property interests without due process of the
law.[43] Furthermore, if “presumed consent” was
demonstrated to completely satisfy organ demand perhaps an
exception to these strong notions of personal autonomy and
individual liberty would be justified, yet as demonstrated in
Europe, “presumed consent” while better than American
“encouraged volunteerism,” has merely curbed a small
portion of the demand for organs in those countries utilizing the
system.

THE MARKET SOLUTION

Currently the United States does not recognize the
right of individuals to sell their own organs. With regard to the
deceased, although the widespread view is that a small degree of
property rights exist in a cadaver, enough for the deceased to
control the decision whether their organs get donated or not, the
right to sell these organs is also not permitted.[44] Under the federal National Organ Transplant Act,
people who are paid money for their organs are subject to a fine of
$50,000, or five years in prison, or both.[45]

This paper advocates the repeal of the federal and
state laws prohibiting the sale of organs. The rationale behind the
existing prohibition is not clear. For instance, why is an
individual permitted to sell his blood, semen or bone marrow but
not his kidney? Moreover, this prohibition does not resonate with
American constitutional precepts. The federal government should
return to the notions of individual autonomy and personal liberty
that this country was founded on by enabling individuals the full
freedom of choice to trade, sell or donate their organs as they
wish. The author recognizes that there is less political resistance
(especially in the face of the growing organ deficit) to enabling
the deceased to be compensated for their organs and therefore this
paper advocates that legislation enabling the deceased to be
compensated should be put into effect immediately. Yet this paper
argues that this is only the second best alternative and a stopgap
solution. The only means to finally cure the organ deficit before
science is able to manufacture organs abundantly is to permit
living donors to sell their organs.

Compensation for Organs Generally

The ban on the sale of organs has the effect of
imposing a price of zero. When prices are zero, suppliers have
little incentive to supply and therefore shortages are the natural
consequence. Although critics of organ selling state that there are
incentives beyond money, such as good will and self-satisfaction
that serve as incentives to provide organs, thirty years of
experience demonstrate that these hazy incentives are not enough.
In order to raise the supply of organs, it is clearly necessary
that donors receive some sort of consideration for the organs they
are providing. India provides a pertinent example of the effects of
enabling donors to receive compensation. Upon legalizing organ
selling, the immediate supply of organs in India rose dramatically,
enough to satisfy more than one-half of the existing
demand.[46]

Beyond raising the supply of organs immediately,
permitting donors to receive compensation for their organs also
eliminates the arbitrary criteria chosen by doctors in selecting
who is going to receive the donated organ. Due to the huge shortage
of organs, medical personnel utilize arbitrary criteria to ration
the access to supply. Although there may be a number of patients
eligible to receive an organ on the basis of their organ failure,
medical personnel choose between them by utilizing criteria such as
marital status, number of dependants, income, educational
background, intelligence, employment record, etc.[47] These criteria amount to gauging the social worth
of the recipient. In effect you have medical personnel deciding who
is going to live and who is going to die. Permitting donors to
receive compensation for their organs would raise the supply of
organs and enable medical personnel to abandon utilizing arbitrary
criteria resulting in the inequitable distribution of organs.

The primary criticism of donors receiving
compensation for their organs lies in the potential for abuse and
ethical condemnation. Concerns regarding the potential for abuse
will be addressed when this paper details its arguments for organ
selling for both living and deceased donors below. In regards to
ethical objections, opponents of donors receiving compensation
often cite ethics as the huge obstacle to effecting any
compensation scheme. Yet not only are the ethics that these critics
cite vague and seemingly arbitrary (e.g. “It just
doesn’t feel right”) but these ethics, as unspecific
and varied amongst individuals as they are should not be placed at
the center of the debate. Although one can find a consensus on the
ethics of the populous to not permit murder, the ethics surrounding
compensation for organs carries diverse opinion. However, it seems
that those that are against compensation for organs carry an
ethical monopoly in the media condemning those who would provide
their organs to those that would willingly, even enthusiastically
pay a fee to get.[48] A recent study by United Network for Organ Sharing
(UNOS), the current agency in charge of organ distribution, showed
that nearly half of Americans are in favor of allowing some
monetary incentives to be given to organ donors.[49] There has been an exaggeration of the public
antipathy to compensating organ donors by who base criticisms in
impractical ethical conservatism. When donors started receiving
money for their blood there was the same sort of uproar, which
quickly retreated in the face of widespread commonsense.[50]

Furthermore, behind these ethical condemnations,
the practical concrete arguments against compensating people for
their organs are often sparse. Generally opponents simply have an
indistinct “ethical squeamishness” against compensating
donors for their organs.[51] Clearly something as indiscriminate as
“ethical squeamishness” should not stand in the way of
patients, on the edge of death, from receiving viable organs.

Critics also fear that offering compensation for
organs threatens to turn human body parts into market
commodities.[52] Yet organs already exist as commodities, in
respect to them being desired things that are routinely transported
from one place to another. Furthermore, how can we adhere to the
misconceived, idealistic notion that the human body is priceless,
when people are dying for lack of organs and we permit the selling
of ova, blood and bone marrow.

Paying the Deceased

Payment to the deceased for the procurement of
their organs would not be a radical step for the government to
authorize considering there would be little potential for abuse and
the ethical arguments against it are, as stated above, nebulous,
hollow and relatively unimportant when considered against the
burgeoning organ supply crisis. A substantial number of scholars
have contributed ideas on how such a system would work[53] and the best approach should incorporate ideas
from a number of them.

The new framework would be as follows; the estates
of deceased donors would receive money payments relative to the
organs harvested from their bodies. These payments would probably
not be excessive as it would be unnecessary to pay an exorbitant
fee for an organ that would no longer be utilized. Furthermore, the
expected increase in supply of organs due to the monetary
incentives would drive down costs further. Payments to the donor
and administrative fees for running the program would be paid by
the donee, (more likely their insurance company). Moreover,
compensation to the deceased’s estate provides incentives to
the next of kin to permit organ procurement, thereby eliminating
the problem of having had the deceased consent only to have the
medical personnel fail to procure the organs due to the attendant
wishes of the next of kin. Lastly, medical personnel will have an
incentive to procure the organs not only because both the next of
kin and the deceased have desired them to do so but the resulting
benefits to the donee will conform with their medical principles as
will the resulting fees from the transplantation operation. Critics
may contend that this would encourage inequitable distribution of
organs as the rich would be more likely to be able to pay and/or
have insurance. Yet the supply available to the poor will not
change as donations motivated by altruism will not be affected by
donors receiving compensation for their organs as the poor will
still get the same amount. Those that wish to donate their organs
for free will continue to do so. Although some may have a problem
with only the rich benefiting from this program, it is no different
than the current status quo with other health care services and
products. For instance, the rich get more access to life-saving
AIDS drugs like AZT than the poor do.

Consent to harvest the deceased’s organs for
compensation will still be needed and in order to encourage
potential donees to educate themselves on organ donation and
provide consent an incentive will be needed here as well. This
incentive could be provided in the form of people receiving a small
subsidy on fees connected to obtaining or renewing their passports
or drivers licenses. Rather than paying $50 to renew their license,
the potential donor would have the choice to only have to pay $40
if they consented to having their organs harvested for compensation
upon their death. Again, this subsidy would be paid by the donees,
who considering their precarious state, would eagerly pay it.

Paying the Living Donor

The best method to alleviate the organ supply
problem is to permit living donors to sell those organs that they
can continue to live healthy lives without (e.g. kidney, part of
lung or liver, etc.). Considering more than half of those on
transplant lists need kidneys, permitting the sale of kidneys, of
which a person only needs one to live a healthy life, provides a
win-win situation. Simply put, instead of one person living with
two viable kidneys and one person dying without any, you have after
the sale and transplant, two people living with one viable kidney
each. In order to prevent abuse, donors would only be allowed to
sell their kidney’s to federally licensed organ banks. These
organ banks would act as middlemen between the donors selling their
organs and the donees and hospitals performing the transplants. In
this capacity these organ banks would serve to avoid the abuse of
the system that could occur, for instance, if donees tried to sell
tainted or diseased organs, or minors or mentally incompetent
people tried to sell their organs, or if criminals
“body-snatched” (i.e. kidnapped) people in order to
harvest their organs, etc.

What these organ banks would not do is prohibit
poor people from selling their organs. Letting the poor sell their
organs is the central criticism of many opponents of organ
selling.[54] Critics assert that the poor will be unduly
coerced into selling their organs and they will be taken advantage
of to the benefit of the rich donees buying the organs. While these
organs will be available to anyone that can pay, these critics are
somewhat correct in their estimation that the poor, considering
they need the money more, will be disproportionately persuaded to
sell their organs. Yet what these critics in their ivory towers and
fairy tale bubbles fail to realize is that 1) poor people get taken
advantage of everyday far worse than this and 2) the money the poor
receive for their organ will probably be more valuable to them than
an organ they do not need to have to live a healthy life. The risks
connected to selling a kidney are low. In fact, one study has
equated the risk of living with one kidney as equivalent to letting
a person drive sixteen miles to work and back.[55] Contrast this risk of living with one kidney and
the profits that a poor person could secure for selling the kidney.
Ascribing a low value of $1,800 for a kidney (which is what a
kidney currently goes for in India[56] ), would still be highly significant to a poor
person. It could mean a tuition bill for their children, a down
payment on a home, etc. Just because a poor person is more likely
to sell a kidney than a rich person does not reflect abuse, it
reflects reality – poor people need the money more than the
rich and this is fair manner for them to get it. Unlike in other
circumstances (e.g. lack of healthcare available to the poor), at
least in this case a poor person is receiving monetary compensation
that could actually lead to the betterment of their life. Critics
cloud the clarity of this fair quid pro quo with an “ethical
squeamishness” and romantic egalitarian notions that are not
applicable in today’s world. People selling their organs even
if they are more likely to do so if they are poor does not reflect
the moral and ethical quandary that opponents contend as these
opponents fail to consider the tangible benefits that these donors
receive in return, namely cash, that could have an immediate
positive effect upon these donors lives.

Conclusion

The organ deficit in America represents an
ever-growing crisis that is begging for reform. The current
framework of “encouraged volunteerism” has done little
to grow the actual supply of organs and instead prescribes 15
people waiting on transplant lists to die everyday. These are
deaths that could be easily avoided if those laws prohibiting the
sale of organs were repealed. Simple economics tells us that
incentivizing donors by enabling them to receive compensation for
their organs would significantly increase the supply and thereby
cure the organ deficit. Criticisms concerning the potential for
abuse (primarily against the poor) and ethics are misguided and
hollow. Not only do these criticisms on the one hand rely on
ill-informed, idealistic yet impractical notions of what the world
should be like (for instance failing to see the compensatory
benefits flowing to the poor could quite likely lead to a net
benefit for them when weighed against the loss of their organ) But
also, on the other hand, these criticisms rely on nebulous,
insubstantial estimations of ethics that do not comport with what
the general population ascribes to or even more pertinent to those
of the donor and the donee. Considering the gravity of the nations
current organ deficit it is critical that legislators get beyond
these relatively trifling concerns (especially minor, when
considered against the death of more and more people simply due to
lack of organs) and repeal the prohibition against people receiving
some sort of concrete compensation for their organs.

[6]See David E. Jefferies, The Body as
Commodity: The Use of Markets to Cure the Organ Deficit , 5
Ind. J. Global Legal Stud. 621, 623 (1998) (The first successful
live kidney transplant was conducted in the United States in
1956).

[34] As mentioned above, the UAGA does contain a
“presumed consent” provision but the United States
experience under “presumed consent” has been thoroughly
lacking primarily do to its overly weak application in
practice.

[47]See Jefferies 5 Ind. J. Global Legal Stud.at
640; see also New York State Task Force in Life and the Law,
Transplantation in New York State: The Procurement and Distribution
of Organs and Tissues (1988).